Citizens for Resp. & Ethics in Wash. v. DOJ, No. 21-5276, 2023 WL 1113218 (D.C. Cir. Jan. 31, 2023) (Pillard, J.)

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 21-5276, 2023 WL 1113218 (D.C. Cir. Jan. 31, 2023) (Pillard, J.)

Re:  Request for records concerning procurement by Bureau of Prisons of pentobarbital as new lethal agent to be used in federal executions

Disposition:  Reversing and remanding district court’s grant in part of government’s motion for summary judgment

• Exemption 4:  The Circuit Court for the District of Columbia Circuit relates that “[t]he Bureau asserts that Exemption 4 applies here to certain withheld ‘commercial and financial information, as well as to identifying information.’”  “The Bureau claims entitlement to withhold ‘any information that could lead to the identity’ of its pentobarbital suppliers or of individuals or companies that ‘performed related critical services on that [p]entobarbital supply,’ asserting that those individuals or companies ‘have typically kept [such identifying information] private.’”  “[The requester’s] challenge is a narrow one, focused on just a subset of the Bureau’s Exemption 4 withholdings.”    “[The requester] . . . zeroes in on two deficiencies it sees in the Bureau’s claim of exemption.”  “First, it asserts that the names of the Bureau’s contractors cannot be ‘commercial . . . information’ as contemplated by Exemption 4.”  “Second, it argues that the Bureau has not met its burden to demonstrate that certain key contract terms, such as drug quantities and expiration dates, could in fact reveal the contractors’ identities such that they are ‘confidential’ commercial information.”  “Importantly, [the requester] disputes the commercial nature of only the contractors’ names (not the contract terms) and disputes the confidentiality of only the requested contract terms (not the names).”
  
  First, “[the court] hold[s] that the Bureau has not met its burden to justify nondisclosure of the contractors’ names.”  “The Bureau . . . reads Exemption 4 to apply whenever disclosure of confidential information, regardless of its character, could have commercial or financial repercussions.”  “[The court has] read Exemption 4 to cover only information that, in and of itself, demonstrably pertains to the exchange of goods or services or the making of a profit.”  “[T]he government may not rely on Exemption 4 where the withheld information only tenuously or indirectly concerns the exchange of goods or services or the making of a profit.”  “[M]ost businesses – unlike, apparently, the contractors here – eagerly disclose their names, whether to publicize their identities, develop their brands, register their names as trademarks, or use them as website domains.”  “And, where business names are not customarily and actually kept private, they are not in any case confidential commercial information that may be withheld under Exemption 4.”  “That pervasive reality is no obstacle here because, as noted above, [the requester] challenges only the commercial character of the contractors’ names, not their confidentiality.”  “The Bureau seeks to justify withholding the contractors’ names because, if they were disclosed, the contractors could face public opprobrium aimed at discouraging them from providing pentobarbital for use in executions, which in turn might hurt the contractors’ business or cause them to voluntarily exit the pentobarbital market.”  “On its own terms, the Bureau’s claim of exemption suffers from some shortcomings.”  “First, the Bureau’s own declarations cast at least some doubt on its claim that the contractors’ names are commercial information.”  “In one of its declarations, the Bureau stated that it applied Exemption 4 to ‘commercial and financial information, as well as to identifying information’ in the requested records.”  “It makes little sense to treat ‘identifying information’ as a distinct category from ‘commercial and financial’ information unless identifying information is not necessarily commercial in and of itself.”  “Second, the Bureau conflates the ‘commercial’ and ‘confidential’ inquiries under Exemption 4.”  “The Bureau’s own declarations make clear that the risk of public outrage is why ‘[t]his [identifying] information is kept private.’”  “But the fact that a business’s name is kept private shows only that it may be ‘confidential’ – and [the requester] does not dispute that the contractors and the government have so treated the names of the contractors at issue here.”  “It is not enough under Exemption 4, however, for information to be ‘confidential.’”  “[The court] would ‘torture[ ] the plain meaning of Exemption (4)’ to apply it to ‘any information given [to] the [g]overnment in confidence.’”  “Third, the Bureau claims that companies are exiting the market for lethal injection drugs as a result of activist pressure, but its cited examples show that companies have exited or decided against participating in the lethal injection market for various reasons, not all of them commercial.”  “Even apart from those evidentiary shortcomings, the Bureau’s claim of exemption fails for an antecedent, independent reason:  The Bureau does not explain in any detail how a contractors’ name is commercial ‘in and of itself’ – that is, how the name ‘serves a “commercial function” or is of a “commercial nature.”’”  “Instead, the Bureau rests its claim of exemption exclusively on the potential commercial consequences of disclosure, asserting that the contractors could face public hostility and resulting economic harm if their names were disclosed.”  “But the commercial consequences of disclosure are not on their own sufficient to bring confidential information within the protection of Exemption 4 as ‘commercial.’”  “[The court] reverse[s] and remand[s] for further proceedings because the Bureau has not provided ‘detailed and specific information demonstrating “that material withheld is logically within the domain of”’ Exemption 4.’”
  
  Second, the court relates that “[the requester] also challenges the Bureau’s Exemption 4 withholding of so-called ‘key contract terms’ – namely, drug prices, quantities, expiration dates, invoices, container units, lot numbers, purchase order/reference numbers, substance descriptions, drug concentrations, and dates of purchase, service, and/or delivery.”  “The Bureau asserts that disclosing those terms could reveal the identities of individuals and companies involved in the procurement of pentobarbital.”  “[The requester] does not dispute that those terms are ‘commercial’ and were ‘obtained from a person’; it challenges only whether the Bureau has met its burden of showing those terms are ‘confidential.’”  “[The court] likewise do[es] not decide whether the second condition must be met, because [the requester] does not dispute the point for purposes of this appeal.”  “[T]he Bureau did not seek to show the confidentiality of the contract terms as such; it predicated its claim of confidentiality wholly on their potential to identify the contractors.”  “The issue is not why any particular information is confidential, but rather, whether it is confidential given the Bureau’s declarants’ only claim: that the contractors keep identifying information private.”  “Here, the withheld contract terms are logically within the domain of the Bureau's Exemption 4 claim only to the extent they constitute ‘information that could lead to the identity of’ individuals or companies in the Bureau’s pentobarbital supply chain.”  “Because the Bureau chose to structure its exemption claim in two steps – that is, asserting first that the contractors keep identifying information private and second that the contract terms are identifying – particular contract terms are appropriately withheld under Exemption 4 only to the extent both steps have been demonstrated to the district court’s satisfaction.”  “Therefore, to meet its burden to justify withholding, the Bureau must persuade the district court to hold that ‘detailed and specific information’ demonstrates that the contract terms could in fact reveal the identities of the Bureau’s pentobarbital contractors.”  “Because the district court did not require the Bureau to explain how the contract terms are identifying, [the court] reverse[s] and remand[s] for further proceedings consistent with this opinion.”
  
  Senior Circuit Judge Sentelle writes separately, concurring in the judgment, and states that “while [he] agree[s] with reversing and remanding, [he] would also hope that full examination of the evidence with respect to this claimed exemption would be undertaken on remand.”  He states that “[he is] not . . . in full concurrence with the majority's opinion regarding the commercial nature of the companies’ names.”  “It appears that the companies in this case quite reasonably wish to protect their contractual arrangements by maintaining the confidentiality of their identities as suppliers of lethal injection drugs.”  “As the evidence shows, previous supplying entities were subjected to protests, suffered economic disadvantage, and withdrew from the market once identified as such suppliers.”
   
• Waiver and Discretionary Disclosure, Waiver:  The Court of Appeals for the District of Columbia Circuit relates that “[the requester] contends that the Bureau waived the application of Exemption 4 with respect to certain contract terms that are already in the public domain.”  “On appeal, [the court holds that it] cannot determine on the existing record whether the Bureau waived Exemption 4 with respect to certain expiration-date and drug-concentration information.”  “[The court] would need to know, for instance, what specific expiration dates and drug concentrations have been publicly released and whether records containing those very same dates and concentrations are still being withheld because they include that information.”  “Those factual inquiries are the ‘province of the district court,’ . . . but that court has not yet weighed in because the earlier disclosure was discovered for the first time on appeal.”  “[The court] thus remand[s] to the district court to determine in the first instance whether and to what extent any information in the public domain is the basis on which the government seeks to withhold any records or reasonably segregable portions thereof under Exemption 4.”